HKSAR v. MD HASHEM ALI

DCCC 403/2020

[2020] HKDC 1197

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 403 OF 2020

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REASONS FOR SENTENCE

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1.  Defendant pleaded guilty to one charge of “Assisting the passage within Hong Kong of an unauthorized entrant”, contrary to section 37D(1)(a) of the Immigration Ordinance, Cap. 115.

Admitted Facts

2.  On 27^th January 2020, at around 8:27 a.m., the Defendant boarded Mr. Mok Pui-sun’s taxi and requested Mr. Mok to drive to Kai Kuk Shue Ha near Sha Tau Kok. The Defendant showed Mr. Mok a photo of his intended destination that was on his mobile phone.

3.  The taxi arrived at Kai Kuk Shue Ha at around 9:00 a.m. on the same day, at which another South East Asian male, Mohammad Motiar Rahman (“Rahman”). The Defendant then requested Mr. Mok to drive both him and Rahman to Fanling MTR station. At the same time, there were four other South East Asian males who also wanted to get on board but the Defendant refused.

4.  At around 9:13 a.m. on the same day, PC 16832, PC 8257 and a team of police officers intercepted the taxi at the junction of Sha Tau Kok Road and Luk Keng Road (“the Location”).

5.  Upon enquiries, the Defendant was found to be a Form 8 holder and he stated that he boarded the taxi from Hung Shui Kiu to Kai Kok Shue Ha to pick up his nephew (“Rahman”). Rahman’s clothes and his rucksack were wet and dirty. A large amount of clothing was inside the rucksack. A Bangladeshi passport was found on Rahman which contained an immigration arrival stamp of China dated 23^rd January 2019 but no Hong Kong immigration stamps were found.

6.  Upon further enquiries, it is confirmed that Rahman was an unauthorized entrant.

7.  The Defendant stated, inter alia, the following in his cautioned Record of Interview:-

i)  He received a call from an unknown male called “Sumon” and a photo showing a location. Sumon told him that the location was where his nephew was and which was why he rode a taxi from Hung Shui Kiu to the said location to pick his nephew up. He does not personally know Sumon.

ii)  Sumon is named “Sumon Miah” in his mobile phone application “IMO”. Sumon first contacted him on around 24^th December 2019 and told him about the political situation in Bangladesh. On 27^th January 2020, Sumon sent him a photo and told him to pick up his nephew at the location as shown in the photo.

iii)  When he arrived at the photographed location, he saw 5 males including his nephew. He does not know the other 4 males. At that time, he believed that his nephew is an illegal immigrant so he wanted to pick him up to surrender himself to the Immigration Department. However, they were arrested on their way.

iv)  He came to Hong Kong in July 2009 to apply for torture claim. He now lives in Kwai Chung. His nephew is the grandson of his father’s elder brother.

8.  The Defendant’s mobile phone was manually searched with his consent. In the application “IMO”:

i)  A conversation thread with a “Billal” was found which showed a photo with a road sign of Kai Kok Shue Ha (timestamp 27 Jan 07:47 hours) and a photo of No.1A, Kai Kuk Shue Ha (timestamp 27 Jan 08.05 hours).

ii)  A conversation thread with “Sumon Miah” was found and they started contacting each other at timestamp 25 Dec 2019 09:29 hours. The conversation thread up till timestamp 27 Jan 14:26 hours consisted of missed audio calls and deleted messages.

9.  Rahman’s mobile phone was manually searched with his consent. A photo with a road sign of Kai Kok Shue Ha and a photo of No.1A, Kai Kuk Shue Ha were found and these were the same photos found on the Defendant’s phone.

Defendant’s Background

10.  Defendant is 38 years of age having been born in Bangladesh on the 1^st May 1982. He is married with three daughters aged 21, 18 and 13 years of age. His wife and children reside in Bangladesh. Defendant came to Hong Kong around June 2009 and was arrested at the border whereupon he made a claim of asylum. He is a Form 8 holder. Prior to coming to Hong Kong Defendant had run a shop selling garments.

11.  Defendant had received a limited education up to the age of 11 and cannot speak English or Cantonese. Defendant cannot write Bengali and has a limited ability to read Bengali.

12.  He has a clear criminal record.

Mitigation

13.  There is a familial relationship between Defendant and the unauthorized entrant; Defendant is the Rahman’s uncle. Rahman had spent HK$60,000 to a syndicate to arrange for his passage to Hong Kong. One of the syndicate, a person called Sumon who was based in Hong Kong, was to arrange collection and transportation once Rahman arrived in Hong Kong.

14.  Suman was supposed to meet them but by 7:00 a.m. Sumon had not arrived. Rahman managed to contact Sumon who said that he could not come as he had difficulty in finding a taxi. Rahman then made contact with Defendant for assistance.

15.  Defendant had earlier received contact from Sumon in the form of voice messages and was aware that his nephew would be coming to Hong Kong. Prior to 27^th January 2020 Defendant was not aware that Defendant would be entering Hong Kong illegally.

16.  On the morning of the 27^th January 2020 Defendant received a photograph of a road sign[1] from Sumon as well as a voice message to inform him that was the location for his nephew. Defendant sent the same photograph to his nephew to confirm where upon Defendant received a photograph from his nephew as to his location[2].

17.  Defendant was unable to communicate with the taxi driver and instead showed the taxi driver the #12 photo and on the way also showed the taxi driver #13. Defendant then realised from the area that his nephew must have landed in Hong Kong illegally. Defendant though intended to take his nephew to surrender to the Immigration at Kowloon Bay. Although Defendant had sufficient money for the taxi to go to Kowloon Bay, Defendant was unable to communicate that to the driver, so instead Defendant asked the driver to go to the Fanling railway station.

18.  Defendant intended to take his nephew to surrender to the Immigration authorities. Defendant was aware, just as in his case, after processing by the Immigration Department, Defendant’s nephew would be released with a Form 8 and able to freely move around Hong Kong. There would be no benefit for Defendant’s nephew to remain on the streets illegally without documentation. Defendant’s nephew was issued a Form 8 and released on recognizance on the 28^th February 2020.

The Law

19.  Defence submitted the following authorities in mitigation:

20.  The following cases are commended to the Court for assistance in considering an appropriate sentence:

i)  Lee Kin Ming CACC 536/1991: The defendant pleaded guilty to seven separate charges under s.37D(1)(a) and received a concurrent sentence of 2½ years. The defendant had assisted the movement of seven illegal immigrants, who all possessed forged ID cards, within Hong Kong and had been paid $1,000 per person.

ii)  Wong Fu Keung CACC 158/1996: The defendant assisted in the trafficking of two women who were unauthorized entrants from the mainland who entered for the purpose of prostitution. The defendant’s role was to meet the women who had arrived by boat, provide them with forged identity cards and take them to the urban area. After trial, on the s.37D(1)(a) charge he was convicted and sentenced to 3 years’ imprisonment.

iii)  Chan Lai Choi CACC 166/1997: The defendant was convicted on one charge under s.37D(1)(a) in assisting the passage of five unlawful entrants and sentenced to four years’ imprisonment. The judge had taken a starting point of five years but as this assistance was on land rather than sea deducted 4 months and a further 8 months for having a clear record. On appeal the CA referred to the case of Wong Ying Lung CACC 52/1994 in which the starting point for sentence for a captain of a vessel bringing in unauthorized entrants should be 5 years. The CA found that as the defendant had just used a taxi to transport the entrants from one part of the territory to another the defendant’s culpability cannot be compared to that of a captain of a vessel bringing unauthorized entrants into Hong Kong. In the circumstances of this case a starting point of three years would be appropriate. The CA though at the end imposed a sentence of 2½ years.

iv)  Sarfraz & Others CACC 381/2017 [2018] HKCA 517: “S” was the 2^nd Applicant in this application for leave to appeal from his sentence upon a plea of guilty to a charge under s.37D(1)(a). S disputed the fact that he was the central organiser in receiving unauthorized entrants and accordingly a Newton hearing was held. The trial court, in rejecting S’s contention that he was only receiving his brother and derived no commercial benefit, found that S was the central organiser in that there were a series of messages on his phone which were concerned with the payments and arrangements for the transportation and arrival of unauthorized entrants. Further, S had engaged the 1^st and 3^rd Applicant’s to assist in this endeavour. The trial judge adopted a SP of 45 months (33 months for the 1^st and 3^rd Applicants) which was enhanced by 15% under the provisions of s.27 OSCO as it was shown to be an organised crime (But not for the 1st and 3rd Applicants) and a further 2 months’ enhancement as a Form 8 holder. For the failed Newton hearing only 20% was reduced for the plea of guilty. Leave to appeal sentence was dismissed.

v)  Chan Shing CACC 573/1980: Defendant was convicted of his plea of guilty to a charge of aiding and abetting two illegal immigrants to remain in Hong Kong and was sentenced to 12 months’ imprisonment. The CA found that Defendant only became involved due to the fact that he was helping a relative in circumstances where he felt a familial obligation and there was no consideration of any financial reward. The sentence was reduced by 50% to one of 6 months’ imprisonment.

21.  I have also considered more recent authorities. In Wong Chi Kin CACC 357/2004 and Ko King Hung CACC 41/2004, the court of appeal after considering earlier authorities, reaffirmed that for this offence, the generally applicable tariff is 4 years’ imprisonment. Where the accused was the captain of the vessel or the person in charge or assisting in the operation of the venture, the appropriate starting point is 5 years’ imprisonment. This case relates to bringing unauthorized entrants into Hong Kong on a vessel. (See also HKSAR v Sze Yu CACC 143/2003.)

22.  Despite the authority of Chan Lai Choi is made before Wong Chi Kin, Ko King Hung and Sze Yu, the principles in Chan Lai Choi must still apply. Culpability of a defendant using a taxi to transport unlawful entrants cannot be compared to that of a captain of a vessel bringing unauthorized entrants into Hong Kong. Starting point in the present case should be lower.

23.  I have considered Defendant’s mitigation. There is no evidence to contradict his allegation that Rahman Mohammad Motiar is in fact his nephew. According to the taxi driver’s evidence, after picking up Rahman, four other south Asian males asked to be picked up but was refused by Defendant. From the mobile phone records, there is no evidence that Defendant was involved in the organizing of Rahman’s entrants. His explanations in the cautioned Record of Interview were also consistent with his mitigation.

24.  Therefore, I accept that:

i)  This offence arose out of the familial relationship between Defendant and the unauthorized entrant,

ii)  Defendant intended to bring Rahman to surrender to Immigration Department in Kowloon Bay,

iii)  there was no financial benefit to Defendant and

iv)  Defendant did not take part in organizing the unauthorized entrant’s passage to Hong Kong.

25.  In such case, Defendant’s culpability is lower than the appellant in Chan Lai Choi, who was seen talking multiple trips to pick up unauthorized entrants.

26.  Having considered all of the above, I am of the view the appropriate starting point is 2 years’ imprisonment. Defendant pleaded guilty not at the earliest opportunity but prior to the commencement of trial, a 25% discount is appropriate. There are no other mitigating factors which warrant a reduction in sentence. Therefore, the Defendant is sentenced to 18 months’ imprisonment.